During Trial, the MOST IMPORTANT Settlement Discussions Happen in the Court House Hallway

I was in Court today.
I had to appear on four different cases.
In four different courtrooms.

In Nassau County Supreme Court.
Here in Mineola, New York.

I had to appear on status conferences.
These are required appearances for the attorneys handling medical malpractice & personal injury cases.
The judge wants updates on what's going on with each case.

When I was finished attending to my status conferences I went on a walk through the court house.
Not a leisurely stroll.
But a walk in search of something.

I was searching for a busy courtroom.
A courtroom with a lot of activity.
Not a bunch of lawyers waiting around to be seen by the judge or the judge's law clerk.

Instead, I was looking for cases on trial.
I wanted to sit in on a case on trial.
I wanted to hear opening arguments.

I wanted to see cross examination.
I wanted to see if I could learn something from an attorney trying a case that I had not seen before.
I wanted to confirm what you should never do when questioning an opposing witness.

So I went in search of a case on trial.
I went up to the third floor.
It's divided into East and West corridors.

I turned left and walked down the hallway, peeking into each courtroom as I slowly walked by the small window in the door. Nothing. Empty. No trials on this side of the 3rd floor. I continued to the right side and repeated this same process. Glancing into each courtroom revealed not a single case on trial on this floor. With a sigh, I made by way to the staircase and headed up to the fourth floor.

Like the floor below, this floor has an East wing and a West wing. I turned right and began looking earnestly for a case on trial. Nothing. Not a single one. Then I walked to the left and started to pass the first courtroom on my left. Lo and behold! A case on trial!

There were jurors sitting in the jury box.
There was a witness on the witness stand.
The judge was on the bench.

The attorney who was questioning the witness had a screen set up with a small projector near his laptop.
I decided to open the door and walk in.
As I walked in, all the jurors turned to look at me, along with the judge, to see who had just entered.

I sat down quietly on the left side of the courtroom and began paying attention.
Within 15 seconds I knew who was questioning the witness and what kind of case this was.
Here's how I knew...

In this courthouse the attorneys tables are lined up one in front of the other.
The attorney's table closest to the judge is for the plaintiff; the attorney who represents the injured patient.
The table behind that one is for the defense; the attorney representing the doctors or hospital staff.

There was an attorney sitting quietly at the front table when I walked in.
The attorney who normally sits at defense table was standing at the lectern asking the witness questions.
I immediately learned that this was a medical malpractice case involving the death of a fetus at 35 weeks gestation.

I couldn't tell exactly what the claims were or why this was a valid case.
What I did notice is that the defense attorney was very methodical and deliberate with each question he asked.
Every question he asked was a leading question.

A question that only called for "YES," "NO," or "I DON'T KNOW."
"Mrs. Jones, on that day you spoke to the doctor, correct?"
"After that obstetrical appointment, you scheduled your next visit before you left the office, right?"

The jury was paying attention.
Mostly to the defense attorney asking questions.
He was building his defense.

One answer at a time.
He was taking his time.
When the plaintiff (the woman bringing the lawsuit) started to explain an answer, he immediately cut her off, restricting her only to yes, no or I don't know.

It was obvious to me that there were clear disputes in this case.

Disputes about who was legally responsible for what happened.
Despite listening to this cross examination for 30 minutes, I'm not sure what exactly happened.
There's a dispute about whether the treatment she received or didn't receive caused her baby's death in utero.

From what little I heard in the courtroom, I believe this is probably a psychiatric/emotional damages case where the mother is claiming significant psychiatric distress because of the improper obstetrical care she received.

When I left the courtroom this morning and headed into the hallway, I noticed there were groups of attorneys huddled among themselves along different parts of the hallway.

You should know that in every trial, the most important discussions among the attorneys trying the case typically take place in the hallway. It's semi-private allowing for some privacy. Settlement discussions do not lend itself to the courtroom itself. That tends to be the battleground.

Instead, the hallway tends to be neutral ground where the attorneys can talk and probe whether there's money on the table or not. From the hallway, an attorney can go and make a quick phone call to an insurance carrier to see what their settlement posture is and whether it has changed.

From the hallway, I can pop into the courtroom or invite my client to come into the hallway to speak to my client about any settlement offer made during trial. The hallway is where the action is really taking place. However, if you're not a party to that litigation, you won't be invited to listen in and join the conversation. To a passerby it will look like attorneys standing in a huddle talking quietly.

The conversation might go like this...

"Hey John, your expert didn't do so well on cross-examination. I think now might be a good time to talk settlement. Can you see if the carrier is willing to increase their offer and we can wrap this case up right now?"

Or maybe the conversation would go like this...

"Hey Gerry, can I talk to you for a minute outside?" the defense attorney asks during a brief bathroom break.
"Sure."
We both walk into the hallway with our respective clients eyeing us like hawks wondering what's up.

"Listen, I spoke to the carrier and they're inclined to make an offer. Would you be willing to entertain a high/low agreement to limit our risk of a high verdict and limit your risk of a very low verdict?"

These questions and these brief discussions are critical to negotiations.
They often take place on neutral ground, maybe even in the judge's private chambers.
The judge might encourage the attorneys to settle depending on how the case is going.

By putting pressure on both sides, the judge can often expedite a settlement if the parties to the case are inclined to settle.

As I walked down the hallway on the fourth floor and into the stairwell to walk down four flights of stairs, I couldn't help but wonder how many thousands of cases in this court house and others throughout the state are resolved by what goes on in these hallways.

If only the walls could talk!

Learn two ways defense lawyers negotiate by watching the the quick video below...

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To reach Gerry, call him now at 516-487-8207

The material on this website is for informational purposes only. Mr. Oginski practices law exclusively in the State of New York.

We do not practice law in any other State. Please do not send any written materials to this office until you have spoken and/or communicated with us. We cannot consider you a client until such time as we have consulted with you, and met with you personally. Since all cases are different and legal authority can and does change, it is important to remember that prior results cannot and do not guarantee similar outcomes with respect to any future matter in which any lawyer or law firm may be retained. To the extent that this website discusses past cases the firm has handled, or in any way mentions the firm or its services, New York courts may deem this to be attorney advertising.